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MATRIMONIAL
HOMES (FAMILY PROTECTION) (SCOTLAND) ACT 1981
QA.
I am purchasing from two (or more) people who are not married to each
other. What Matrimonial Homes Act evidence will the Keeper require?
A. Section 6(2)(b)
of the 1981 Act provides that - for the purposes of that Section -
the term 'entitled spouse' does not include a spouse who is "entitled
to occupy a matrimonial home along with another individual who is
not the other spouse". Accordingly, where two (or more) people
are jointly entitled to occupy a property, the Keeper does not require
Matrimonial Homes Act evidence for a dealing entered into by both
(or all) proprietors.
QB. Can
a power of attorney be used to execute Matrimonial Homes Act documentation?
A. The view of
the Law Society's Conveyancing Committee, as reported at page 466
of the 1983 issue of the Law Society Journal, is that a power of attorney
may be used for the purposes of execution of a consent or renunciation
by a non-entitled spouse, if the power of attorney 'confers express
power on the attorney to sign a form of consent or renunciation of
occupancy rights'. The Keeper adheres to this view in practice.
QC. I
am purchasing from an Attorney acting on behalf of an unmarried elderly
proprietor. What Matrimonial Homes Act evidence will the Keeper require?
A. The appropriate evidence
under Section 6(3)(e) of the 1981 Act is an Affidavit sworn by the
elderly proprietor. The view of the Law Society Conveyancing Committee
[see above] is that the swearing of an Affidavit under Section 6(3)(e)
cannot be delegated to an Attorney.
If the proprietor
is able to understand and make the sworn statement, but is physically
unable to sign, then the Affidavit should be executed in terms of
Section 9 of the Requirements of Writing (Scotland) Act 1995; in such
cases, the Keeper recommends that the 'relevant person' for the purposes
of Section 9 should be a different individual from the notary public
who receives the sworn statement.
If the proprietor is unable to make the sworn statement because of
mental incapacity, the Keeper may be prepared to forego the statutory
requirements if he is given a letter from the proprietor's doctor,
explaining the nature and duration of the problem and confirming that
the proprietor is unable to understand and make the sworn statement.
If the diagnosis of incapacity discloses that it is likely to be permanent,
the Keeper will accept convincing evidence (e.g. by way of Affidavits
from persons with the relevant personal knowledge) that the proprietor
is unmarried.
QD. I am purchasing from the Curator Bonis, Guardian or authorised
person (under an intervention order under the Adults With Incapacity
(Scotland) Act 2000) of a sole proprietor. What Matrimonial Homes
Act evidence will the Keeper require?
A. The
Keeper takes the view that a sale by a Curator Bonis, Guardian or
authorised person is not a voluntary dealing of the incapax to which
Section 6 of the 1981 Act applies. No evidence under Section 6(3)(e)
is therefore required by the Keeper in respect of the incapax.
QE. I
am purchasing a house from the Trustee in Sequestration of a sole
proprietor. What Matrimonial Homes Act evidence will the Keeper require?
A. The
Trustee is not "entitled…to occupy", and does not therefore
fall within the definition of 'entitled spouse'. Equally, no evidence
under Section 6(3)(e) is required in respect of the bankrupt, since
the sale is not a voluntary dealing of the latter to which Section
6 applies. However, in view of the terms of Section 40 of the Bankruptcy
(Scotland) Act 1985, the Keeper will require either the 'relevant
consent' under Section 40(1)(a) or a court order in terms of Section
40(1)(b) or a satisfactory explanation that the property is
not the bankrupt's 'family home'.
QF. I
am purchasing a house from the Trustee under a Trust Deed for the
creditors of a sole proprietor. What Matrimonial Homes Act evidence
will the Keeper require?
A. No
evidence is required in respect of the sale as again the Trustee is
not entitled to occupy the subjects and does not therefore fall within
the definition of 'entitled spouse'. Although evidence that there
are no occupancy rights in terms of the Matrimonial Homes Act is not
required at the time of sale by the Trustee, it is required at the
time of the drawing up of the Trust Deed transfer of the debtor's
estate to the Trustee.
QG. I
have a Matrimonial Homes Act Affidavit which has been sworn/affirmed
outwith the United Kingdom. Will this be acceptable to the Keeper?
A.
For such Affidavits, there are two alternative procedures which may
be followed:
(a) The Affidavit may be sworn in the presence of a person
authorised by the law of the country in question to receive sworn
statements. If the country where the Affidavit is sworn is a signatory
of the Hague Convention for the Abolition of Legalisation [5 October
1961, Cmnd 2617], an Apostille should be endorsed on the Affidavit
by the foreign office of that country. If the country in question
is not a signatory of the Convention, the Affidavit should be Legalised
by a UK Consul acting in that country.
(b) The Affidavit may be sworn in the presence of a UK diplomatic
official acting in the country in question and authorised under Section
6 of the Commissioners for Oaths Act 1889.
QH. Does
the Keeper exclude indemnity if appropriate evidence in terms of the
Matrimonial Homes Act is not produced with an application for registration?
A. If
satisfactory evidence confirming the absence of any occupancy rights
is not available at the time of registration of the sale, the Keeper
will insert a qualified statement in the Title Sheet. This statement
will disclose the transactions about which satisfactory evidence concerning
occupancy rights has not been produced. Such a qualified statement
is not an exclusion of indemnity, as the existence or not of an occupancy
right affects the right of vacant possession and not the title.
QI. I
have a Matrimonial Homes Note 2 on a Land Certificate, i.e. The Keeper
is satisfied that there are in respect of the subjects in this title
no subsisting occupancy rights, in terms of the Matrimonial Homes
(Family Protection) (Scotland) Act 1981, of spouses of persons who
were formerly entitled to the said subjects, except … who ceased
to be entitled on …and in respect of whose entitlement no evidence
of the non-existence of an occupancy right has been produced). How
do I get it removed?
A. The
evidence should be submitted on or with a Form 2 and a fee of £30.
QJ. I
am purchasing from an entitled spouse and the non-entitled spouse
cannot sign a form of consent. What Matrimonial Homes Act evidence
does the Keeper require?
A. Where
the non-entitled spouse has disappeared or is incapax the Keeper requires
application to the Court in terms of Section 7 of the Act to dispense
with the requirement for consent. |
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